Citation Nr: 1753970	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO. 14-06 297	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Pension Management Center in Philadelphia, Pennsylvania

THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) on the basis of entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1976 to March 1977 with additional service in the National Guard. He died in February 2013. The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office and Pension Management Center (RO & PMC) in Philadelphia, Pennsylvania.


FINDINGS OF FACT

1. The Veteran's immediate causes of death were terminal arrhythmia, congestive heart failure (CHF), diabetes, and hypertension and significant contributing causes of death were a pacemaker and alcohol abuse.

2. At the time of his death, the Veteran did not have any service-connected disabilities.

3. The Veteran's heart disability was not incurred during a period of ACDUTRA service while in the National Guard.

4. The preponderance of the evidence is against a finding that a heart attack occurred during the Veteran's INACDUTRA period of National Guard service. 

3. An injury or disease in service did not cause or contribute substantially or materially to the Veteran's death.



CONCLUSION OF LAW

The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1310, 1311, 1318, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Neither the appellant nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran [appellant] fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In June 2014 and July 2017 statements, the appellant contended that the Veteran incurred a heart attack/heart disability while serving in the National Guard that contributed to his death. The appellant does not contend that the Veteran's diabetes incurred in or was otherwise related to service and contributed to the Veteran's death.

A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a).

The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b).

There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected disability was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such disability affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

In determining whether VA compensation is warranted for a DIC claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in, which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's death certificate reflects that he died in February 2013 and that the immediate causes of death were terminal arrhythmia, congestive heart failure (CHF), diabetes, and hypertension. It also indicated that significant conditions that contributed to his death were a pacemaker and alcohol abuse. At the time of Veteran's death, he was not in receipt of service connection for any disabilities; therefore, the Board must consider whether the immediate cause of death was etiologically related to the Veteran's military service.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).

"Active military, naval, or air service" includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) in which the individual concerned was disabled or died from an injury (not also a disease) that was incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training.

National Guard duty, however, is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of his/her state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." See Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id.

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Cardiovascular-renal disease, including hypertension, are chronic diseases listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See 38 U.S.C. § 1101; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, presumptive service connection does not apply to claims predicated on ACDUTRA and INACDUTRA service, only instead active duty. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010).

The Board has reviewed the Veteran's claim file including service treatment records and post-service medical records for any indication of an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident at any point during ACDUTRA or INACDUTRA service and found that the preponderance of the evidence is against such occurrence. The Veteran's October 1988 service separation examination shows an abnormal clinical evaluation of the heart. Diffuse Point of Maximum Impulse Grade III/ VI holosystolic murmur was also noted. The examiner indicated that the Veteran appeared to be in good physical condition other than a noted heart murmur; a history of cardiac catheterization with an unclear diagnosis; and a history of sharp chest pains, which were probably not cardiac in origin. The examiner determined that the Veteran was not qualified for service due to his heart murmurs. In the accompanying October 1988 Report of Medical History, the Veteran specifically wrote that he had heart trouble and that he was not on any medication. He checked "yes" for having "pain or pressure in chest" and "heart trouble." The Veteran also indicated that he had been hospitalized and wrote "Self-Memorial Hospital - Cardiac Cath, 1982." The examiner added that the Veteran was undergoing evaluation for the heart murmurs and had described sharp chest pain. The examiner noted that the Veteran described having a cardiac catheterization in 1982 for evaluation of sharp chest pains however indicated that he did not know the results.

The Veteran's January 1980, October 1982, and July 1986 service examinations revealed a normal evaluation for the "lungs and chest," "heart," and "vascular system." In the accompanying Reports of Medical History, the Veteran indicated that his present health was "good" and that he did not ever have "pain or pressure in chest;" "palpitation or pounding heart;" or "heart trouble or murmur." While the Veteran reported that he had a cardiac catheterization in 1982 during the October 1988 service separation examination, the record reflects that it was actually performed in 1985and  not 1982. 

In an October 1988 private medical record, the physician noted that after a review of records from Self Memorial and Providence Hospitals, the Veteran was admitted with chest pain in 1985 and had documented positive cardiac enzymes with electrocardiogram (EKG) changes that certainly looked ischemic, compatible with subendocardial infraction. In a March 1985 medical record from Providence Hospital, the physician indicated that the Veteran was in excellent cardiovascular health until two hours prior to his admission to Self-Memorial Hospital, when he experienced a "crampy, substernal chest pain." The Veteran denied any other cardiovascular history or symptoms and admitted a habit of tobacco use, half a pack a day. Daily alcohol consumption was also noted. The physician added that the Veteran's EKG and a review of cardiac enzymes suggested the presence of probably ischemic coronary disease. Following the catheterization procedure, the physician's impressions were normal myocardial contractility with an ejection fraction of 45 percent; normal myocardial hemodynamics; normal coronary arteries; and sinus of Valsalva aneurysm of the right coronary cusp. While the Veteran had experienced a heart condition in March 1985, this was not during a period of ACDUTRA or INACDUTRA service. 

The Veteran's December 1999 Army National Guard Retirement Points History Statement indicates that between November 11, 1983, and July 9, 1986, the Veteran earned zero points towards retirement and specifically noted that the Veteran's military membership status identifier was "H3" or "non-military, civilian break." Therefore, the March 1985 heart condition would not be considered to have incurred in either ACDUTRA or INACDUTRA service.

In an October 1988 letter, the Veteran's private physician indicated that the Veteran had a serious heart problem, which required open heart surgery to correct. He added that the Veteran should not be working until his heart can be repaired. A May 1988 private medical record shows that the Veteran was evaluated for a cardiac murmur and had no specific complaints. The Veteran indicated that many years ago he had some chest pain. The physician indicated that the Veteran was hospitalized and underwent catheterization, which only showed "a little infection." The Veteran was noted to smoke a few cigarettes, mostly on the weekends, and to drink one to two beers per day during the week with heavier drinking on the weekends. A physical examination of the Veteran revealed a healthy male in no distress with a holosystolic murmur, which radiated to the axilla partially obscuring the first and second heart sound. There was no definite diastolic murmur present, no rub or gallop, and the second heart sound showed persistent splitting but there was respiratory vibration. The physician's impression was a mitral regurgitation murmur with uncertain etiology. 

An August 1988 private medical record shows that the Veteran was studied with an echocardiogram because of his murmur and it was determined to be insignificant, especially in the view that his left ventricular ejection fraction was normal. In a July 1988 Disability Report for Social Security Administration benefits, the Veteran reported that he was an inpatient at Self Memorial hospital for one week in 1986 and then transferred to Providence Hospital for one week thereafter due to his sickle cell disease having caused heart problems. The Veteran was referring to the 1985 hospitalizations mentioned above. Further, he indicated that he was diagnosed with sickle cell disease at age 18. An August 1989 private medical record included the physician's impressions of sickle cell disease, murmur of mitral insufficiency, and cardiomegaly secondary to both sickle cell disease and murmur. 

A September 2008 private medical record reflects that the Veteran had an increased risk of sudden cardiac death and met all criteria according to SCD-HEFT trial for implantation of a cardiac defibrillator. The Veteran was also noted to have a dilated cardiomyopathy of uncertain etiology that was previously ascribed to alcohol abuse. The physician added that "the Veteran's history of a previous unknown type of cardiac surgery was puzzling." The Veteran also had persistent atrial tachyarrhythmia; both atrial fibrillation and atrial flutter, at the time which the physician indicated were probably related to the cardiomyopathy although scars from a previous atriotomy may have contributed. 

Since 1985, the Veteran's medical records indicate that he sought treatment for a heart condition beginning in May 1988 up to the October 1988 letter from his physician, which stated open heart surgery was necessary, as discussed above. A review of the Veteran's service dates from this period shows that the Veteran only served one weekend per month for drills, which is INACDUTRA service. Jumps-Army leave and earnings statements reflect that the Veteran served May 21-22, 1988; June 12-13, 1988; July 16, 1988; did not serve in August 1988; September 10-11, 1988; October 15-16, 1988; and did not serve from November 1988 through March 1989. A Report of Separation and Record of Service shows that the Veteran was terminated from the Army National Guard of South Carolina and as a reserve of the Army on March 1, 1989 due to being medically unfit for retention. 

The Veteran's 1988 heart condition was not shown to be incurred during INACDUTRA service. That fact notwithstanding, a heart condition short of a heart attack would not qualify for service connection if incurred during a period of INACDUTRA service. For INACDUTRA service the Veteran had to have been disabled or died from an injury or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, the Veteran was afforded a VA examination for his claimed heart condition in April 2012. The examiner confirmed that Veteran was diagnosed with a cardiomyopathy; however the exact date of diagnosis was unknown. The examiner indicated that he reviewed the Veteran's claim file and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by service. He provided the rational that there was no heart problem in active duty service records and it was not until 1988 , when there is a mention of a heart condition and that the Veteran was in the reserves. The examiner added that the Veteran had an extensive history of alcohol usage since age 15 per the Veteran's report and at the time of the VA examination carried a diagnosis of alcohol cardiomyopathy. 

In the Veteran's VA Form 21-526, Application for Compensation and/or Pension, he wrote that his claimed disabilities began October 25, 1988. An April 2002 private medical record indicates that the Veteran has a history of alcoholic dilated cardiomyopathy since 1998. The April 1998 private medical record reflects that the Veteran's alcoholic cardiomyopathy was well controlled but the Veteran still had a tendency towards alcohol abuse and had to remain abstinent in order to be healthier. A February 2008 private medical record revealed that the Veteran's international normalized ratio (INR) was above desired range most likely secondary to alcohol use according to the medical professional. The Veteran also had a history of tobacco use and cocaine usage. For example, an April 2004 VA medical record shows that the Veteran asserted that his last cocaine usage was a month prior (March 2004). The medical evidence, as shown, supports the April 2012 VA examiner's rationale that is suggestive that the Veteran's heart condition is due to causes other than service to include alcohol usage. The preponderance of the evidence is against a finding that a heart attack occurred during the Veteran's INACDUTRA period of National Guard service; therefore service connection is not warranted. 

The Board finds that an injury or disease in service did not cause or contribute substantially or materially to the Veteran's death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

ORDER

Entitlement to DIC on the basis of entitlement to service connection for the cause of the Veteran's death is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs